An attorney for the U.S. Navy urged federal appeals judges Thursday to allow the Navy to continue to use high-powered sonar during training exercises in Southern California waters, saying it would cause only “temporary and minor problems” for whales and dolphins.
The arguments came in a high-stakes case pitting the U.S. Navy against environmental groups and the California Coastal Commission over the use of mid-frequency sonar that has been linked to deaths and panicked behavior of whales and dolphins.
A district judge in Los Angeles three months ago temporarily banned the Navy from using the sonar during training missions, ruling that it could “cause irreparable harm to the environment.” But the Navy persuaded a three-judge panel of the U.S. 9th Circuit Court of Appeals to set aside the injunction until the matter could be sorted out by the appellate judges.
Allen M. Brabender, a Justice Department lawyer, argued that the judges should throw out the injunction in the interests of national security, saying the lower court failed to “consider the safety of the Navy, the Marines and the American public.”
The U.S. Navy, he said, is vulnerable to attack by quiet diesel-electric submarines owned by potentially hostile nations, he argued.
Mid-frequency sonar, which emits bursts of sound that “light up” submarines in the sonic equivalent to a disco strobe light, is the best tool to detect such a threat, the Navy says.
The Navy “needs to practice at night and to practice in low visibility,” Brabender said. “That’s when it can expect to meet this threat.”
Richard Kendall, an attorney representing a coalition of environmental groups and the California Coastal Commission, said his clients didn’t want to interfere with proper training of sailors. But his clients, he argued, want the Navy to follow federal law, carefully weigh environmental impacts and adopt safeguards to protect marine mammals.
“You would expect these injuries to occur, and there are ways to avoid them,” Kendall said. “The Navy is choosing to ignore them.”
The Natural Resources Defense Council and the Coastal Commission have been pushing the Navy to avoid deploying sonar within 12 miles of the coast, an area rich with marine mammals, and to reduce the power of sonar at night or during heavy fog, when Navy spotters might not be able to see whales that venture close to ships.
The Department of Defense this year exempted the Navy from the Marine Mammal Protection Act, citing national security. But the environmental groups won an injunction under the National Environmental Policy Act, which has no provision for such an exemption. Judge Florence-Marie Cooper said she was persuaded by documented cases of whale deaths in the Bahamas, the Canary Islands and by the Navy’s projection of expected injuries to deep-diving beaked whales off Southern California.
The Navy, which maintains that there have been no injuries or deaths of marine mammals during decades of exercises using sonar off Southern California, wants scientific proof before it undertakes more precautions.
“Their position is that no whale should die because of training,” said Rear Adm. Terry Blake, who watched the arguments Thursday with other uniformed officers. “We say, no sailor or Marine should die for lack of training.”
A separate three-judge panel adopted that view when it set aside the injunction.
During Thursday’s oral arguments in Pasadena, Brabender tangled with Judge Stephen Reinhardt, effectively telling him that the first panel’s ruling was a binding decision that these judges should honor.
“It will no longer be binding,” Reinhardt shot back, “if we have a different view.”